Drug Crimes

Trafficking in Cocaine Case Reversed When State Could Not Prove Constructive Possession

Published on: January 14, 2011 | by Lasnetski Gihon Law

A recent trafficking in cocaine case near Jacksonville, Florida was reversed because the state could not prove that the defendant was in constructive possession of the cocaine. In any possession or trafficking case, the state has to prove the defendant knew about and possessed the illegal drugs beyond a reasonable doubt. Possession of drugs can be proven in two ways. Actual possession means what it sounds like- the defendant was holding the drugs or had them on his/her person. Constructive possession is more vague. Even where the defendant is not holding the drugs in some way, the state can still prove the defendant was possessing the drugs by proving constructive possession. Constructive possession deals with things we know are present and over which we have some control. For instance, if a person lives in an apartment by himself and the police find a bag of cocaine in his desk drawer along with his wallet and bills, the state has a pretty good constructive possession case. On the other hand, if the state cannot prove that the defendant knew the drugs were present and had some control over them, the state cannot prove constructive possession.

In the recent trafficking in cocaine case, a police officer stopped the defendant for a traffic violation. During the stop, the officer found a bag with over 100 grams of cocaine under the driver’s seat. The vehicle did not belong to the defendant, no fingerprints were found on the bag, the police officer never saw the defendant touch the bag and the defendant did not make any statements admitting the cocaine was his or he knew it was there. There was no evidence connecting the defendant to the bag of cocaine other than the fact that it was under the seat of a car he was driving. Because the state did not present any evidence that the defendant knew the bag of cocaine was there or had placed it there, the trafficking in cocaine conviction was reversed.

This is a fairly common scenario in possession of, and trafficking in, illegal drugs cases. Had the bag been sitting on the passenger seat with the defendant being the only one in the car, the state’s case would have been much better. The defendant in this case did not make any statements to the police about the cocaine. The number one way the police obtain the evidence they need to prove a constructive possession case is by obtaining statements about the drugs from the suspect. Had this defendant made any statements indicating he knew the cocaine was in the vehicle, the state’s trafficking in cocaine case would have become much stronger.

Lewd or Lascivious Molestation Case Reversed Due to Marijuana Evidence

Published on: January 11, 2011 | by Lasnetski Gihon Law

In a recent criminal case near Jacksonville, Florida where the defendant was charged with lewd or lascivious molestation for allegedly showing his penis to a 5 year old and enticing her to touch it, the state’s conviction of the defendant was reversed because the state improperly introduced evidence of the defendant’s marijuana use. Apparently, the victim’s dad and the defendant used to smoke marijuana together in the same house where the alleged lewd or lascivious molestation occurred, and this testimony came out at the trial when the prosecutor was questioning the victim’s dad. The defendant was not charged with possession of marijuana; he was only charged with the sex crime.

The jury convicted the defendant of lewd or lascivious molestation, but the conviction was reversed on appeal. The evidence of the defendant’s marijuana use was not relevant to the case and whether the defendant committed lewd or lascivious molestation. Evidence of the defendant’s marijuana use was considered impermissible character evidence and should not have been heard by the jury. In other words, the purpose of that testimony was to attack the defendant’s character because whether the defendant had used marijuana in the past had nothing to do with whether he committed the sex crime for which he was charged. Sometimes when there is an error in a trial, a conviction is not necessarily reversed if the error is considered harmless, i.e. the mistake did not appear to affect the jury’s guilty verdict. However, when the jury hears of other crimes committed by the defendant that have nothing to do with the crime that is the basis of the trial, this will almost always result in a conviction being reversed.

Violent Crimes and Property Crimes Still Decreasing Across US, Pill Cases Increasing

Published on: December 24, 2010 | by Lasnetski Gihon Law

Last year, we posted about how violent crimes and property crimes have decreased despite the recession and difficult financial times for many people. The common thinking was that as times get tough for people, more people would commit crimes. That was not the case in 2009, and it does not appear to be the case in 2010. According to a recent article citing FBI statistics, violent crimes and property crimes have continued to decline in 2010 even though the economy has arguably improved very little. Violent crimes have actually dropped 6.2% in the first half of 2010, and property crimes dropped 2.8%. The 2010 numbers are part of a three year trend of fewer crimes across the country. Experts have not been able to come up with many reasons why crime has been consistently dropping as the economy has declined. However, the trend appears to be pretty clear after three years.

One area where crime has increased is in the area of illegal pills. As criminal defense lawyers in the Jacksonville, Florida area, we have seen many more cases involving people arrested for illegally possessing various pills (such as Oxycontin, Oxycodone, Hydrocodone, Xanax and others) without a prescription and distributing such pills illegally. The police are also vigorously going after pain clinics and other medical providers whom they allege are dispensing these narcotic pills improperly. While overall crime may be trending downward, the police are still focusing on particular areas where they allege crime is still going strong. Based upon our observations, there is little doubt that the distribution and possession of illegal pills is an area on which the police are currently focusing.

Police Arrest 135 People in Jacksonville Area During Illegal Pill Investigation

Published on: December 21, 2010 | by Lasnetski Gihon Law

Police in the Jacksonville area arrested 135 people, mainly in Duval County and Clay County, for either allegedly illegally possessing pills without a prescription or illegally distributing pills, according to an article on www.Jacksonville.com. According to police, the arrests occurred between September and December of this year, and the arrests are only the first phase of a longer investigation into the sale and use of illegal pills in the Jacksonville, Florida area and throughout Florida. The investigation apparently also includes doctors, pharmacists and other medical professionals who are accused of distributing pills unlawfully. Approximately 12,000 pills were seized in the latest operation, and police indicate there is more to come.

We have seen pain clinics pop up all over Florida in the last couple of years, and we represent a variety of such people from owners of pain clinics to people accused of illegally possessing various pain pills. Many of the people involved with pain clinics and other medical providers provide services to people who have chronic pain and are in need of medical services but may not have insurance or the funds to avail themselves of other medical providers. State and federal authorities have been cracking down on these pain clinics and allege that some of them are illegally dispensing pain pills in large quantities and those pills are being re-sold on the street at a significant profit. While there may be some people who are abusing the system and re-selling pain pills, there are also medical providers who are offering a valuable service to people in need of medical care for chronic pain who have no other way to get relief. In situations such as these, we see law enforcement cast a wide net that certainly catches people illegally distributing and using illegal drugs but also people who are providing a valuable and legitimate business and medical service.

In this case, it appears that the police in the Jacksonville area are determined to make a lot of arrests for alleged illegal pill-related crimes as this is just the first phase of the investigation. The concern, as always, is that honest and legitimate people involved in the business of pain management will get caught up in the massive investigation. In those cases, it is important that their rights are protected and the police and government are challenged to prove that illegal activity actually took place.

Police in Florida May Be Permitted To Search Residence After Lawful Arrest

Published on: December 18, 2010 | by Lasnetski Gihon Law

Because people in Florida have a Constitutional right to be free from unreasonable searches and seizures as well as a privacy right in their homes, police can only search one’s residence for drugs, guns or other evidence in limited circumstances. The two primary bases for legally searching one’s home are consent to search and a valid search warrant. However, there may be other circumstances where a police search is legal.

For instance, in a recent cultivation of marijuana case near Jacksonville, Florida the police had an arrest warrant for the defendant’s roommate. They both lived in a mobile home. An arrest warrant is just what it sounds like- it gives the police the right to arrest the person listed in the warrant, but it is not a search warrant so it does not give the police the specific right to search anything in particular. However, in this case, the police arrived at the mobile home, and the person in the arrest warrant answered the door. That person asked the police if he could retrieve some of his things, and the police followed him inside. The person was looking back into the mobile home and acting nervously as if someone else was in the mobile home. The police officers called out to anyone else in the mobile home, but no one responded. The officers then walked around the mobile home to see if anyone else was present and found several marijuana plants and marijuana cultivation equipment in one of the rooms. They also found the defendant who was arrested for felony possession of marijuana and cultivation of marijuana.

The criminal defense lawyer for the defendant tried to have the evidence of the marijuana thrown out based on the argument that the search was illegal. The criminal defense attorney argued that the police officers did not have a search warrant or consent to search the mobile home so the search was illegal and any drug evidence found was inadmissible in court. However, there is an exception to the general rule that the police cannot search a home without a search warrant or consent that the court found applied in this case. When the police make an arrest in one’s home, if they have a legitimate reason to believe someone else may be present who may pose a danger to the police, they can search the immediate area for their safety. This is called a protective sweep. If they happen to find marijuana or other evidence of a crime during this protective sweep, they are authorized to seize it and use it against the suspect in a criminal case.

Proving Defendant Knew the Drugs Were There is Not Enough for a Drug Possession Conviction in Florida

Published on: December 9, 2010 | by Lasnetski Gihon Law

In a recent case outside of Jacksonville, Florida, the police were looking for someone who had a warrant for his arrest. They tracked him down to a house which had a secondary building in the back yard that was also used as a residence. The police found the suspect in the secondary residence. When they came in to arrest him, they found cocaine and marijuana in plain view in the residence. They charged the suspect with trafficking in cocaine and possession of marijuana.

The criminal defense lawyer on the case ultimately got the case thrown out. The main problem with the state’s case was they had no proof that the defendant owned or lived in the secondary residence. In order for the state to prove trafficking in illegal drugs or possession of illegal drugs, the state has to prove that the defendant was in possession of the drugs. Normally, this means the person actually had the drugs in his/her possession. However, actual possession of drugs is not required for a drug possession conviction. Constructive possession of drugs can also result in a conviction in Florida. To prove constructive possession, the state has to prove that the defendant knew the drugs were present AND had some sort of control over the drugs. So, just because the drugs were out in the open in the same room and the defendant knew they were there is not enough to convict him for trafficking or drug possession. The state must prove more- for instance that he put them there or they were his drugs. Being in close proximity to illegal drugs is not enough. If the defendant had said they were his drugs, that would be sufficient for a conviction. Or, at a minimum, if the state could prove that the defendant lived at that residence by himself, that could be circumstantial evidence that the drugs were his.

The police often arrest anyone who is found near illegal drugs, whether in a residence, a vehicle or on the street. However, without a statement from someone admitting to ownership of the drugs, being near drugs is not sufficient for a drug conviction in Florida.

Police Have Easy Access to Your Pharmacy Records of Controlled Substances in Florida

Published on: December 3, 2010 | by Lasnetski Gihon Law

In a recent criminal case south of Jacksonville, Florida, undercover police officers claimed the defendant illegally sold them prescription drugs Oxycodone and Xanax. The police then obtained the defendant’s pharmacy records from two different pharmacies without a search warrant or subpoena. Those records showed that the defendant was seeing two different doctors for the same condition and receiving prescriptions for the pills he was allegedly re-selling. The police then contacted the doctors to obtain medical information about the defendant. This was also done without a search warrant or subpoena. The police found out when the defendant’s next appointment was with his doctor and waited to arrest him there. When he was arrested, the police found more Oxycodone and marijuana in his possession. The defendant was charged with sale of controlled substances (the prescription drugs Oxycodone and Xanax) and possession of a controlled substance and marijuana.

The criminal defense lawyer for the defendant filed a motion to suppress all of the evidence of the illegal drugs based on the argument that the police illegally obtained information and evidence about the defendant without the required consent, subpoena or search warrant. Florida law provides that medical providers may not discuss medical information or release medical information about a patient without the patient’s consent or a subpoena from the court. This is the law because a person’s medical condition and medical records are confidential and cannot be shared with others without the patient’s permission or a justifiable legal reason acknowledged by a judge.

However, the court partially disagreed with the criminal defense attorney and found the police officers’ actions to be legal with regard to the pharmacy records. The reason is that in Florida, pharmacy records of prescriptions for controlled substances are governed by a different statute which allows the police to obtain those records without a subpoena or search warrant. The statute with respect to pharmacy records of controlled substances is not clear in limiting the circumstances when a police officer can obtain those records. The statute seems to authorize the police to obtain one’s pharmacy records of controlled substances when the police are enforcing “the laws of this state relating to controlled substances.” Practically, this would seem to mean any time the police are calling a pharmacy and requesting the records.

Possession of Marijuana Case Gets Thrown Out Due to Illegal Search

Published on: November 29, 2010 | by Lasnetski Gihon Law

In this case the police officer was responding to a call regarding a missing juvenile. He went to a facility where juveniles stayed and spent time playing games and meeting with others. When he arrived, he saw the juvenile defendant in this case sleeping in the common area. There were some clothes and a bag near the defednat. Antoehr girl was sleeping near the defendant. A pipe was partially visible in the bag and close to the defendant and the girl. The police officer rertrieved the pipe from the bag which had marijuana resideu in it. The defendant admitted the pipe was his and arrested the juvenile.

Normally, when the police want to search someone or something, the police officer needs a search warrant. However, one exception to the seaarch warrant requirement occurs when the police officer sees something in plain view which is obviously evidence of a crime. This does not mean the police officer can walk into someone’s house or open someone’s bag and then seize a bag of marijuana that is in plan view at that point. One requirement of the plain view doctrine is that the police officer has a right to be where he/she is when the police officer sees the illegal item in plain view.

In this case, the judge threw out the evidence of the pipe and the marijuana inside because there was insufficient evidence to believe the partially concealed pipe was obviously illegal drug paraphernalia at the time the officer saw it. The officer could not see the entire pipe so it could have been something else. Even it was clearly a pipe, the officer did not see the marijuana resideu inside. It could have contained regular tobacco which is not illegal. Beause it was not clear that the pipe was evidence of illegal activity when the officer first saw it, the police officer did not have a right to take it from the juvenile’s bag. As a result, that evidence was thrown out and the possession of marijuana charge was dropped.

Federal Criminal Sentencing Guidelines for Crack Cocaine Cases Now in Effect

Published on: November 26, 2010 | by Lasnetski Gihon Law

As criminal defense lawyers in the Jacksonville, Florida area who handle all criminal cases in state and federal courts, we have seen how people convicted of crack cocaine crimes can receive much higher sentences than those convicted of powder cocaine crimes where the amount of powder cocaine was similar to or even less than the crack cocaine in the related case. The unfairness of these sentencing rules, which disproportionately punished people involved with crack cocaine over those involved with powder cocaine, has been discussed by prosecutors, criminal defense lawyers, federal judges and even the Congress and the president.

Finally, new rules bringing sentences for crack cocaine cases and powder cocaine cases closer together have been enacted. The Fair Sentencing Act, which will permanently become the law next year, is now in effect.

The old federal sentencing guidelines would provide that a person caught with as few as 5 grams of crack cocaine would receive a five year minimum mandatory prison sentence. However, it would take at least 500 grams of powder cocaine to get the same minimum mandatory sentence. That was quite a disparity. With the new law and federal sentencing rules, it will now take 28 grams of crack cocaine to trigger the five year minimum mandatory prison sentence. The threshold for the ten year minimum mandatory prison sentence has been increased from 50 grams of crack cocaine to 280 grams of crack cocaine.

Florida Marijuana Possession Case Thrown Out Due To Unreasonable Show of Police Force

Published on: November 22, 2010 | by Lasnetski Gihon Law

In a recent marijuana case out of South Florida, the court threw out the evidence of the defendant’s marijuana possession because the police used an unreasonable show of force to gain access to the defendant’s residence. In this case, six police officers went to the defendant’s home because he had several recent encounters with the police. The police officers showed up at the defendant’s home without a search warrant. The officers knocked on the door and told the defendant they had a tip that he was cultivating marijuana in the residence. They asked the defendant if they could search his house for marijuana and marijuana paraphernalia. The defendant consented, and the police officers found marijuana growing in his garage.

The defendant was arrested for possession of marijuana with intent to distribute and other related charges. However, in court his criminal defense lawyer filed a motion to suppress, or throw out, all of the evidence of the marijuana because the police used an unreasonable show of force in getting him to consent to the police search.

In general, if the police ask to search something (i.e. a person, vehicle, home) for illegal drugs and the subject agrees, the police have a right to conduct that search without a search warrant. However, the police are not permitted to use intimidation, force or the threat of force to obtain that consent to search. Therefore, consent may become invalid not just due to actual force by police but also based on circumstances that make a person feel like he/she has no choice but to consent. In this case, the fact that several police officers confronted and surrounded the defendant was evidence of an unreasonable show of force and invalidated his consent. If the police had a justifiable reason to believe the defendant had marijuana in the house, they should have taken the appropriate steps to obtain a search warrant prior to searching the house.